“Unilateral, unchecked Executive action is precisely the danger that the Framers sought to avoid in our constitutional system”
News recently broke that George Washington University constitutional law professor Jonathan Turley has been tapped as lead counsel by the U.S. House of Representatives in their lawsuit against President Obama.
Turley has been on the national legal scene for a number of years, but has been gaining increasing notoriety of late as a result of his Congressional testimonies and media appearances regarding the consolidation of constitutional authority in the Executive Branch.
Conservatives have been quick to praise Turley, as his criticisms of the Executive have been directed toward President Obama for the last six years. Turley, however, makes no representation that he is any way politically conservative. Indeed, in his blog post yesterday, he declared quite the opposite.
As many on this blog know, I support national health care and voted for President Obama in his first presidential campaign. However, as I have often stressed before Congress, in the Madisonian system it is as important how you do something as what you do. And, the Executive is barred from usurping the Legislative Branch’s Article I powers, no matter how politically attractive or expedient it is to do so. Unilateral, unchecked Executive action is precisely the danger that the Framers sought to avoid in our constitutional system.
For Turley, this is not an issue of one party against the other. Rather, this is matter of constitutional process. Despite the fact that the decision to sue the President passed along party lines, there are genuine non-partisan concerns about the dangerous evolution of the Legislative-Executive dynamic over the last few decades. Turley went on to add,
This case represents a long-overdue effort by Congress to resolve fundamental Separation of Powers issues. In that sense, it has more to do with constitutional law than health care law. Without judicial review of unconstitutional actions by the Executive, the trend toward a dominant presidential model of government will continue in this country in direct conflict with the original design and guarantees of our Constitution. Our constitutional system as a whole (as well as our political system) would benefit greatly by courts reinforcing the lines of separation between the respective branches.
Turley is, in my opinion, a great choice by House Republicans.
Although opponents are already trying to frame this choice as one of desperation from a Congress that was already abandoned by two other lead attorneys, Turley’s own comments paint a different picture.
After I testified earlier on this lawsuit, I was asked by some House Members and reporters if I would represent the House and I stated that I could not. That position had nothing to do with the merits of such a lawsuit. At that time, in addition to my other litigation obligations, I had a national security case going to trial and another trial case in Utah. Recently, we prevailed in both of those cases. Subsequently, the House General Counsel’s Office contacted me about potentially representing House. With the two recent successes, I was able to take on the representation.
Turley’s comments regarding his own schedule notwithstanding, a spokesman for Rep. Nancy Pelosi did not waste time attempting to undermine the choice.
“Even for $500-per-hour in taxpayer dollars, Speaker Boehner has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president,” said Drew Hammill, spokesman for Representative Nancy Pelosi, the House Democratic leader. “Now, he’s hired a TV personality for this latest episode of his distraction and dysfunction.”
The Pelosi camp’s strategy seems clear already: Undermine this case by trying the participants in the court of public opinion, so you don’t have to face the issues on the merits in the court of law.
Rest assured, this case is far from meritless. It will be interesting to follow Turley and the House of Representatives in this crucial, though uphill, effort to regain some of Congress’ constitutional authority.
We will be covering it here, step by step.
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